Citation Nr: 0503149
Decision Date: 02/08/05 Archive Date: 02/22/05
DOCKET NO. 03-32 256 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to an initial evaluation in excess of 10 percent
for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Raymond F. Ferner, Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an May 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana that granted service connection for
tinnitus and assigned a 10 percent disability evaluation,
effective from October 31, 2002. The veteran, who had active
service from December 1965 to November 1967, expressed
disagreement with the initial evaluation assigned for his
tinnitus, and the case was referred to the Board for
appellate review.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The Schedule for Rating Disabilities does not provide for
an evaluation in excess of 10 percent for tinnitus, and the
veteran's tinnitus does not present an exceptional or unusual
disability picture so as to render impractical the
application of the regular schedular standards.
CONCLUSION OF LAW
The criteria for an initial evaluation in excess of
10 percent for tinnitus have not been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159,
3.321, 4.1-4.14, 4.87, Diagnostic Code 6260 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board is required to address the
Veterans Claims Assistance Act of 2000 (VCAA) that became law
in November 2000. The VCAA provides, among other things,
that the VA shall make reasonable efforts to notify a
claimant of the relevant evidence necessary to substantiate a
claim for benefits under laws administered by the VA. The
VCAA also requires the VA to assist a claimant in obtaining
that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002);
38 C.F.R. § 3.159 (2004).
In this regard, the Board observes that the RO did not
provide notice to the veteran of the VCAA in connection with
his claim for an increased evaluation for his tinnitus as
required by 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1). However, such notice is not required in this
case. An opinion from the VA General Counsel has held that
in claims for separate evaluations for tinnitus for each ear,
as is the situation in this case, notice under 38 U.S.C.A.
§ 5103(a) is not required. See VAOPGCPREC 2-2004 (Mar. 9,
2004). In that opinion, the VA General Counsel held that
under 38 U.S.C.A. § 5103(a) the VA is not required to provide
notice of the information and evidence necessary to
substantiate the claim for separate disability evaluations
for each ear for bilateral service-connected tinnitus because
there is no information or evidence that could substantiate
the claim, as entitlement to a separate rating is barred by
the current Diagnostic Code 6260 and by the previous versions
of Diagnostic Code 6260, as interpreted by a precedent
opinion of the General Counsel that is binding on all
department officials and employees. See also VAOPGCPREC 5-
2004 (Jun. 23, 2004) ("under 38 U.S.C.A. § 5103(a), the
Department of Veterans Affairs (VA) is not required to
provide notice of the information and evidence necessary to
substantiate a claim where the claim cannot be substantiated
because there is no legal basis for the claim or because
undisputed facts render the claim ineligible for the claimed
benefit.") The Board is bound in its decision by these
precedent opinions of the Chief Legal Officer of the VA.
38 U.S.C.A. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a).
Furthermore, as will be explained below, the Board finds that
the law, and not the evidence, is dispositive in this case.
The United States Court of Appeals for Veterans Claims
(Court) has held that where the law, and not the underlying
facts or development of the facts are dispositive in a
matter, the VCAA can have no effect on the appeal. Manning
v. Principi, 16 Vet. App. 534 (2002); Smith v. Gober,
14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited
to interpretation of law); Dela Cruz v. Principi, 15
Vet. App. 143 (2002) (VCAA not applicable where law, not
factual evidence, is dispositive). Therefore, the Board
finds that the case is ready for appellate review.
In this case, a rating decision dated in May 2003 granted
service connection for tinnitus and assigned a 10 percent
evaluation, effective October 31, 2002. In May 2003, the
veteran expressed disagreement with the rating assigned by
the May 2003 decision and requested an increased evaluation
for his tinnitus, essentially a 10 percent evaluation for
each ear. In a Statement of the Case, the RO explained that
under the Schedule for Rating Disabilities there was no
provision for assignment of a separate 10 percent evaluation
for tinnitus of each ear.
Disability evaluations are determined by the application of a
Schedule of Rating Disabilities which is based on the average
impairment of earning capacity. Separate diagnostic codes
identify various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R.
Part 4. When a question arises as to which of two disability
evaluations shall be assigned, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria for that rating. Otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt
regarding the degree of disability will be resolved in favor
of the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3;
Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the time of
an initial rating, separate ratings can be assigned for
separate periods of time based on the facts found-a practice
known as "staged" ratings. Fenderson v. West, 12 Vet. App
119 (1999).
The veteran's tinnitus has been evaluated as 10 percent
disabling under the provisions of 38 C.F.R. § 4.87,
Diagnostic Code 6260. The rating criteria for tinnitus
provide a maximum 10 percent evaluation for recurrent
tinnitus. Note (1) provides that a separate evaluation for
tinnitus may be combined with an evaluation under Diagnostic
Code 6100, 6200 or 6204 or other Diagnostic Code except where
tinnitus supports an evaluation under one of those Diagnostic
Codes. 38 C.F.R. § 4.87, Diagnostic Code 6260 (in effect
from June 10, 1999).
Historically, the Board notes that prior to June 10, 1999, a
10 percent evaluation was assigned when tinnitus was
"persistent as a symptom of head injury, concussion, or
acoustic trauma." 38 C.F.R. § 4.87, Diagnostic Code 6260.
Effective June 10, 1999, the VA Schedule for Rating
Disabilities, 38 C.F.R. Part 4, was amended regarding
evaluating hearing impairment and other diseases of the ear.
64 Fed. Reg. 25208, 25209 (1999) (codified at 38 C.F.R.
§ 4.85-4.87). As noted, the current regulation, as revised
in June 1999, provides for an evaluation of recurrent
tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6200 and a
10 percent evaluation is assigned under the current criteria
when tinnitus is recurrent.
The Board notes further that Diagnostic Code 6260 was revised
again, effective June 13, 2003, to clarify that separate
ratings for each ear are not warranted for tinnitus. In
particular, the following two notes were added to Diagnostic
Code 6260.
Note (2): Assign only a single
evaluation for recurrent tinnitus,
whether the sound is perceived in one
ear, both ears, or in the head.
Note (3): Do not evaluate objective
tinnitus (in which the sound is audible
to other people and has a definite cause
that may or may not be pathologic) under
this diagnostic code, but evaluate it as
part of any underlying condition causing
it.
68 Fed. Reg. 25822 (May 15, 2003).
An opinion from the VA General Counsel has held that
"Diagnostic Code 6260 (currently codified at 38 C.F.R.
§ 4.87), as in effect prior to June 10, 1999, and as amended
as of that date, authorizes a single 10 percent disability
rating for tinnitus, regardless of whether tinnitus is
perceived as unilateral, bilateral or in the head. Separate
ratings for tinnitus for each ear may not be assigned under
DC 6260 or any other diagnostic code." VAOPGCPREC 2-2002
(May 22, 2003).
Based on the foregoing, the Board finds that the RO was
correct in denying an evaluation in excess of 10 percent for
bilateral tinnitus. As noted, the Schedule for Rating
Disabilities provides a maximum schedular evaluation of
10 percent for recurrent tinnitus. 38 C.F.R. § 4.87,
Diagnostic Code 6260. The Board also observes that the
rating criteria under Diagnostic Code 6260 provide that
adjudicators should assign only a single evaluation for
recurrent tinnitus, whether the sound is perceived in one
ear, both ears or in the head. 38 C.F.R. § 4.87, Diagnostic
Code 6260, Note (2).
The Board has also considered the provisions of 38 C.F.R.
§ 4.25(b) which provide, in pertinent part, that "except as
provided in (the rating) schedule, disabilities arising from
a single disease entity, e.g., arthritis, multiple sclerosis,
cerebrovascular accident, etc., are to be rated separately,
as are all other disabling conditions, if any." To the
extent that the veteran contends that he suffers from a
bilateral "disability" arising from a single disease entity,
for which he is entitled to separate compensable evaluations,
the Board notes that in Wanner v. Principi, 17 Vet. App. 4
(2003), the Court directed that the Board must discuss the
provisions of 38 C.F.R. § 4.25(b) in cases involving an
increased rating for tinnitus. The Court held that
Diagnostic Code 6260 (1998) was invalid since it was
inconsistent with 38 U.S.C.A. § 1110 (West 2002). On appeal,
the United States Court of Appeals for the Federal Circuit
reversed the Court's decision and concluded that:
The Secretary's discretion over the
[rating] schedule, including procedures
followed and contents selected, is
insulated from judicial review with one
recognized except limited to
constitutional challenges. The review
undertaken by [the Court] here amounts to
a direct review of the content of the
Rating Schedule and is indistinguishable
from the review of 'what should be
considered a disability' and [the Court]
itself recognized as impermissible.
Consequently, we conclude that it is
outside of [the Court's] jurisdiction.
Wanner v. Principi, 370 F.3d 1124 (Fed. Cir. 2004).
The Board notes further that to the extent that the veteran
is attempting to challenge the medical premise of, or seeks
to distinguish his case from a VA General Counsel opinion
which concluded that the origin of tinnitus is in the brain,
as opposed to the inner ears, he has provided no medical
evidence refuting the conclusions reached by the VA General
Counsel opinion. While the veteran is competent to report
his own symptomatology as to the presence of tinnitus in each
ear, he is not, however, competent to attribute symptoms to a
particular cause. See Espiritu v. Derwinski, 2 Vet. App.
492, 494-5 (1992); see also 38 C.F.R. § 3.159(a)(1).
In denying the veteran's claim, the Board has considered
whether the new regulation can be applied to this case
because it was issued after the original date of the
veteran's claim. It is clear that the new regulation cannot
be applied earlier than it's own effective date. See
38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000;
see also Rhodan v. West, 12 Vet. App. 55, 55 (1998, vacated
on other grounds by 251 F.3d 166 (Fed. Cir. 1999). However,
the VA General Counsel effectively addresses this matter in
VAOPGCPREC 2-2003, wherein it was stated that the recent
amendments to Diagnostic Code 6260 merely restate the law as
it previously existed, and that as a result, neither the
prior nor amended regulation authorized separate ratings for
tinnitus. In other words, VA regulations currently and
previously do not allow for separate ratings for bilateral
tinnitus. VAOPGCPREC 2-2003 merely explains these
regulations and it does not alter their effective dates.
Therefore, the prohibition against separate evaluations for
tinnitus in each ear has consistently been in effect.
Based on the foregoing, the Board finds that there is no
legal basis upon which to award separate evaluations for
tinnitus in each ear. Accordingly, since the law, and not
the evidence is dispositive in this case, the Board finds
that entitlement to an evaluation in excess of 10 percent for
tinnitus, including separate compensable evaluations for each
ear, is not warranted. Sabonis v. Brown, 6 Vet. App. 426
(1994).
Lastly, in reaching this decision, the potential application
of various provisions of Title 38 of the Code of Federal
Regulations have been considered, whether or not they were
raised by the veteran, as required by the holding of the
Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991),
including the provisions of 38 C.F.R. § 3.321(b)(1). The
Board finds that the evidence of record does not present "an
exceptional or unusual disability picture so as to render
impractical the application of the regular schedular
standards." 38 C.F.R. § 3.321(b)(1). In this case, the
veteran simply contends that he should be entitled to
separate compensable evaluations for each ear for his
tinnitus, and there has been no assertion or showing by the
veteran that his tinnitus has resulted in marked interference
with employment or necessitated frequent periods of
hospitalization. In the absence of such factors, the Board
finds that the criteria for assignment of an extraschedular
evaluation pursuant to 38 C.F.R. § 3.321(b)(1) are not met.
Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown,
8 Vet. App. 218 (1995).
ORDER
An initial evaluation in excess of 10 percent for tinnitus is
denied.
____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs